Appeal from Oakland, Robert B. Webster, J.
Leave to appeal denied, 396 Mich 849.
McGregor, P. J., and T. M. Burns and N. J. Kaufman, JJ.
1. -- Defense of Alibi -- Instructions to Jury -- Two Avenues -- Perfect Defense -- Reasonable Doubt -- Omission in Charge -- Harmless Error.
An instruction to a jury concerning a defense of alibi must clearly explain that this defense offers two avenues of relief to the defendant: (1) if the alibi is established, a perfect defense has been shown and the defendant should be acquitted, or (2) if any reasonable doubt exists of the presence of the defendant at the scene of the crime then, also, the defendant should be acquitted; an instruction which fails to mention the "perfect defense" avenue, in the absence of objection, need not, however, result in sufficient prejudice to constitute a manifest inJustice.
2. -- Alibi -- Instructions to Jury -- Reasonable Doubt -- Preserving Question.
A charge concerning an alibi defense must convey to the jury that its task is to determine whether the alibi testimony creates sufficient doubt that the jury cannot find the defendant guilty beyond a reasonable doubt; a charge which when viewed in its totality, adequately informs the jury of that task and which is unobjected to at trial is not grounds for reversal.
The opinion of the court was delivered by: Mcgregor
Robert N. Adams was convicted of armed robbery and assault with intent to commit gross indecency. Defendant appeals.
Defendant, Robert Neil Adams, was convicted by a jury of both robbery armed (MCLA 750.529; MSA 28.797) and assault with intent to commit gross indecency (MCLA 750.85; MSA 28.280). He was subsequently sentenced to a term of 40 to 60 years in prison on the first charge and to a concurrent term of 6 to 10 years on the second. He now appeals both convictions as a matter of right.
Defendant's first claim on appeal relates to the alibi instruction given by the trial court. Preliminarily, we note that the defense counsel at trial did not object to the instruction in question and, in fact, expressed satisfaction with it. Thus, the giving of an erroneous instruction would not warrant reversal, absent a showing of manifest inJustice. People v Spaulding, 42 Mich App 492; 202 NW2d 450 (1972). The trial court's instruction was as follows:
"As to alibi. One of the defenses raised in this case is what the law considers as an alibi. That is that the defendant was at another place at the time of the commission of the crime.
"I instruct you that such defense is as proper and as legitimate as any other and all of the evidence and burden upon that point should be carefully considered by the jury.
"If in view of the evidence, the jury has a reasonable doubt as to whether the defendant was at some other place at the time the crime was committed, they should give the defendant ...